On Friday, the Court of Appeals for the Sixth Circuit dissolved a stay of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). The ETS, initially scheduled to become effective January 4, requires companies with 100 or more employees to require workers to be vaccinated or wear a mask and submit to weekly tests. Not surprisingly, lawsuits challenging this mandate arose in several jurisdictions. The Fifth Circuit had issued the stay before a multi-circuit lottery procedure to consolidate the various petitions landed the multidistrict litigation in the Sixth Circuit.
The three-judge panel of the Sixth Circuit was split 2–1 with Judges Julia Gibbons (a George W. Bush appointee) and Jane Stranch (an Obama appointee) finding the ETS to fall within OSHA’s statutory authority and Judge Joan Larsen (a Trump appointee) in dissent. This is a disappointment as a matter of basic statutory construction. It also flouts the separation of powers.
The majority cloaked its opinion in judicial modesty—the notion that courts should not decide health policy. That was a red herring as the problem really is the unlawful overreach of the executive branch. As Larsen wrote in her dissent, the question “whether Congress authorized the action the agency took” is “the bread and butter of federal courts.”
The Administrative Procedure Act created notice-and-comment requirements that require federal agencies to provide public notice of a proposed rule and to receive public comment before the rule is adopted. The relevant statute authorizes OSHA to issue an ETS, bypassing the usual rulemaking process, when (1) “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and (2) an “emergency standard is necessary to protect employees from such danger.”
OSHA’s statutory authority is limited to within the walls of the workplace. A pandemic is not, of course, uniquely a condition of the workplace. The risk it presents exists everywhere—at homes, schools, grocery stores, etc. The threat is no more “grave” the day before someone enters or the day after someone quite the workforce. Yet here workers are required to vaccinate themselves against a threat found everywhere—or be subject to constant testing—in order to remain employed.
Neither is such an overbroad measure “necessary” to curing the ill. OSHA did not attempt to distinguish between more and less vulnerable workers or aim at particular kinds of workplaces that posed the greatest risk of Covid exposure. The operative statute even laid out the need to “give due regard” for “particular industries” and categories of “workplaces or work environments” that require standards. The failure to make any risk assessment underscores the inappropriateness of issuing the rule as an emergency standard, as does the agency’s timetable. As Larsen put it, “the agency’s claim of emergency rings hollow” when it “waited nearly two years since the beginning of the pandemic and nearly one year since vaccines became available” to issue its mandate without “explor[ing] more finely tuned approaches.”
Moreover, an ETS of this scope is unprecedented. OSHA issued an ETS on nine occasions prior to the current pandemic, in each case addressing problems that distinctively affected particular industries. Yet even most of those were challenged in court, with only one surviving the challenge. Indeed, earlier this year in Alabama Association of Realtors v. Department of Health and Human Services, the Supreme Court described “the sheer scope of the CDC’s claimed authority” to issue far-ranging pandemic measures as “breathtaking,” and it concluded that the government’s claim was “virtually certain” to fail on the merits. Congress must speak clearly before an agency may exercise power of “vast economic and political significance.” In the absence of any limiting principle, the OSHA mandate violates the non-delegation doctrine, an important component of the separation of powers. Congress cannot cede its constitutional authority to legislate to the executive branch.
While neither the Sixth Circuit majority nor the dissent explored the behavior of the principal political actors behind the OSHA mandate, it is worth mentioning this broader context. In September, President Biden had announced he was “frustrated” and losing “patience” with those he could not convince to become vaccinated. He wanted to find a “work-around” rather than rely on a scientific determination about workplace safety. As the Fifth Circuit noted in its opinion on the subject last month, White House Chief of Staff Ron Klain endorsed such a course via retweet: “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations” (emphasis added by the court).
An ETS is subject to less deferential review by courts than the “arbitrary and capricious” standard. But even if the bar of judicial scrutiny were lower, such a mindset is consummately arbitrary behavior. A number of emergency applications to the Supreme Court are now pending. Let us hope the Court reverses the Sixth Circuit and reinstates the stay.